Terms and conditions of employment
| Author | Christopher Rootham |
| Pages | 313-368 |
TERMS AND CONDITIONS
OF EMPLOYMENT
A. INTRODUCTION
is chapter concerns some of the terms and conditions of employment for em-
ployees in the federal publ ic service. It is beyond the scope of this bo ok, or prob-
ably any book, to prepare a complete descript ion of all of the terms and conditions
of employment of federal public servants . For one thing, many of these terms and
conditions are contained i n collective agreements , so will obv iously dier from
bargaining u nit to bargaining unit. For anot her, there are simply too many terms
and conditions to list. As t he Supreme Court of Canada has put it: “e ter ms
and conditions of employment of the federal govern ment’s quarter of a million
current workers are set out in statutes, c ollective agreements, Treasur y Board
directives, reg ulations, mi nisterial orders, and ot her documents that consume
bookshelves of loose-leaf bi nders. Human resources personnel are recru ited into
the system, spend a career at tempting to understand it and die out of it.”
Rather than devalue the eorts of human resource personnel, who “spend a
career” learning to understand the terms a nd conditions of employment, by at-
tempting to summar ize these terms and conditions in a sing le chapter, this book
will fo cus on some of the ser vice-wide conditions , as well as those t hat are, if not
unique, then at least pa rticula rly relevant to the public ser vice. is book w ill
also mention, in summa ry only, some of the most frequently litigated terms and
conditions applic able in the core public admini stration.
Vaughan v. Canada (Attorney Ge neral), [] S.C.R. at para. [Vau gh an].
313
314
B. TERMS AND CONDITIONS FOR UNREPRESENTED
EMPLOYEES
Between and percent of employees in the federa l public service are not repre-
sented by a bargaining agent. For represented employees, t heir terms and condi-
tions of employment are set out in various col lective agreements. Unrepresented
employees obviously do not have their terms and conditions set out in collective
agreements, and must have those terms a nd conditions set out elsewhere.
Until recently, the status of unrepres ented employees was a matter of some
dispute. e Supreme Court of Canada i n a decision stated that a junior
non-unionized employee could sue the government of Quebe c for an employ-
ment-related debt in small claims cour t. In so doing, the Supreme Cour t stated
that this ca sual employee was a “contract employee,” and that it did not see “any-
thing preventing appl ication of the ordinar y law of contract” to that ca se. Even
aer that case, t he nature of the relationship between the Crown and public ser-
vants was stil l in doubt, as it was not clear whet her the Labrecque decision ap-
plied outside of junior, casual employees.
is doubt was resolved by the Supreme Court of Ca nada in a decision,
Wells v. Newfoundland. In that case, Mr. Wells was dismissed from h is position
as member of the Newfoundla nd Public Utilit ies Board when the Newfound-
land Legislat ure reconstituted the Board with fewer member s. Mr. Wells was ap-
pointed to hold oce during go od behaviour unt il the age of sevent y — in fact,
he was dismissed wel l before his seventieth birthday. erefore, he claimed d am-
ages for this unjust dism issal. e Supreme Court of Canada upheld his cla im for
damages, and i n so doing conrmed that senior public ser vants and public oce
holders have a contractu al relationship with the ir employer. e Court stated:
According to Public Service Huma n Resources Ma nagement Agency of C anada,According to Public S ervice Human Resou rces Management Agency of Ca nada, Em-
ployment Equit y in the Federal Public Serv ice – there were , employees in
the core public admi nistration as of Ma rch . e Public Serv ice Sta Relations
Board, th Annual Report – stated th at , employees of Treasury Boa rd
were represented by a barga ining agent as of March — meaning that . per-
cent of Treasury Boa rd employees were represented by a bargai ning agent as of that date
(or that . percent of employees were unrepresented). It is more d icult to determine
the union densit y of the Canada Revenue Agency b ecause approximately , ter m
employees are hired e ach year during peak t ax ling seas on: Canada Customs and
Revenue Agency, Annual Report to Parliament –. By way of comparison , the
union density rat e for the government sector in Ca nada is approximately percent :
Human Resource s and Social Development Ca nada, Workplace Information Dire ctor-
ate, Union Membership in C anada—; and Statist ics Canada, Perspectives on Labour
and Income, Fact S heet on Unionization, vol. , no. (Aug ust ).
Attorney Ge neral of Quebec v. Labrecque, [] S.C.R. at [Labrecque].
[]S.C.R.[[] S.C.R. [Wells ].
315Chapter Ten: Terms and Conditions of Employ ment
In my opinion, it is ti me to remove uncerta inty and con rm that the law re-
garding senior c ivil servants accord s with the contemporary u nderstanding of
the state’s role and obligations i n its dealings with employees. Employ ment in
the civil s ervice is not feuda l servit ude. e respondent’s position was not a
form of monarchica l patronage. He was employed to ca rry out an i mportant
function on be half of the cit izens of Newfou ndland. e govern ment oered
him the position , terms were negotiated , and an agreement rea ched. It was a
contract.
As Beetz J. clearly obs erved in Labrecque,supra, the common law vie ws
mutually ag reed employment relationsh ips through t he lens of contract. is
undeniably is the w ay virtually e veryone dealing wit h the Crown sees it. While
the terms and cond itions of the contract may be dictate d, in whole or in part,
by statute, the employ ment relationship rema ins a contract i n substance and
the general law of contr act will apply unless s pecically superceded by e xplicit
terms in the st atute or agreement.
ere are exceptions to thi s rule: judges, min isters of the Crown, and other
people who ll constit utionally dened st ate roles do not have their terms and
conditions dictated by contract, but by “the terms and conventions of the Con-
stitution.”
Having establ ished that public s ervants a re in a contractu al relationsh ip
with the Crown, what t hen are the terms and conditions of t hat contract? In
Wel ls , the Supreme Court stated t hat these terms are found in “ the written and
verbal mani festations of the agreement [in that ca se, on hiring], applicable stat-
utes and regulat ions, and the common law.” In the passage from Va ug h an cited
above, the Supreme Court mentioned “statutes, col lective agreements, Treasur y
Board direct ives, regulations, ministeri al orders, and other documents.”
e Supreme Court of Canada did not speci fy whether the various implied
terms of employment contracts — in pa rticular, the obligation to provide reason-
able notice prior to dismissa l, or the obligation of good faith and fair dea ling in
the manner of dismiss al — were included in the employment contract s of un-
represented public servant s. In Hladky v. Alberta, the Alber ta Court of Appeal
concluded that the implied ter m requiring reasonable notice of dism issal applied
to se nior pu blic se rva nts in A lber ta. e Cour t of App eal co nclude d that it woul d
take very speci c statutory provisions to eliminate those i mplied terms, and that
Alberta’s Public Service Act did not contain thes e specic terms, notwithsta nding
that the statute perm itted the government to “release” employees whose positions
Ibid. at para s. –.
Ibid. at para . .
Wallace v. United Grain Growers Ltd., [] S.C.R. .
[]A.J.No.(Q.B.),a’d[]A.J.No.(C.A.).[] A.J. No. (Q.B.), a’d [] A.J. No. (C.A.).
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